RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 March 2007
	DOCKET NUMBER:  AR20060008831 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.




Acting Director



Analyst

The following members, a quorum, were present:




Chairperson


Member


Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, he was only two months and a few days from completing his enlistment.  The applicant further states he received several awards during his enlistment and he feels the type of discharge he received was unfair.  

3.  The applicant provides no additional documentation or evidence in support of his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, the Board recognize the considerable growth, successful service, and large potential of the applicant since his youthful misjudgments and grant him an honorable discharge.

2.  Counsel states, in effect, the applicant served honorably and effectively for the majority of his enlistment.  Counsel states the applicant was immature and upon returning to the United States made adolescent mistakes from the start of his tour at Fort Belvoir.  Counsel further states the applicant has clearly learned from his mistakes, grown beyond his alcohol abuse, and has become a very effective and successful law enforcement officer.  Counsel further states continuing to hold a General Discharge with the codes and narrative reason assigned to his discharge will diminish his chances for greater advancement in the law enforcement field.

3.  Counsel provides copies of an unsigned statement, dated 15 January 2001; two letters of reference; seven letters of recognition; and eight certificates of training.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 2 December 1987, the date of his discharge.  The application submitted in this case is dated 23 February 2006 and was received on 20 June 2006.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's military records show he enlisted on 25 January 1985, one month short of his 19th birthday, for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 95B (military police).

4.  On 11 June 1986, the applicant was assigned to the 165th MP (military police) Company in Germany.

5.  The applicant received the Army Achievement Medal for meritorious achievement on 16 January 1986; the Army Achievement Medal with Oak Leaf Cluster for meritorious achievement during the period 19  May 1986 to 23 May 1986; and the Army Achievement Medal with Second Oak Leaf Cluster for meritorious service during the period from 10 June 1985 to 6 December 1986.

6.  On 27 January 1987, the applicant was assigned to the 437th MP Company at Fort Belvoir, Virginia.

7.   On 9 February 1987, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 7 January 1987 to 26 January 1987.  His punishment consisted of  14 days restriction, 14 days extra duty, reduction to pay grade E-2 (suspended for 90 days); and a $100 fine.

8.  On 14 June 1987, the applicant accepted NJP under Article 15, UCMJ, for failure to go to appointed place of duty.  His punishment consisted of 14 days extra duty (suspended for 7 days) and reduction to pay grade E-2 (suspended for 3 months).  The suspension for reduction in grade was vacated on 22 September 1987.

9.  The records contain 18 formal counseling sessions conducted during the period from February 1987 through October 1987 concerning the applicant's failure to repair and poor duty performance.  On 1 October 1987, the applicant’s commander specifically advised him that continued poor behavior could be cause for processing under the provisions of Chapter 13 (Separation for Unsatisfactory Performance) of Army Regulation 635-200 (Personnel Separations).


10.  The applicant received a mental status evaluation on 27 and 28 October 1987.  In both examinations the examiners found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness). The examiners further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

11.  The applicant's commander notified the applicant that he was initiating action to discharge him under the provisions of paragraph 13-2 of Chapter 13 of Army Regulation 635-200 for unsatisfactory performance.  The letter states that the proposed action was being taken due to the applicant's receiving NJP on two occasions, vacation of a suspended reduction in grade due to further unsatisfactory performance, and repeated counseling for failure to repair and for poor duty performance.  

12.  The commander's letter advised the applicant of his right to have his case considered by a board officers; to appear in person before a board officers; to submit statements in his own behalf; to be represented by counsel; to waive any of these rights; and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge, and request his case be presented before a board of officers.  The commander further advised the applicant he was being recommended for general discharge under honorable conditions.  The applicant acknowledged receipt of this notification on 
9 November 1987.

13.  The applicant failed to respond to the commander’s notification within 
7 duty days thereby constituting a waiver of all of his rights in accordance with paragraph 2-2e of Army Regulation 635-200.

14.  The applicant's commander recommended him for discharge due to unsatisfactory performance.  The commander's specific reasons for the recommendation for discharge were the applicant's receiving NJP on two occasions, vacation of a suspended reduction in grade due to further unsatisfactory performance, and repeated counseling for failure to repair and for poor duty performance.  

15.  The appropriate authority waived rehabilitative transfer, approved the recommendation for discharge under the provisions of Chapter 13 of Army Regulation 635-200, and directed that the applicant’s service be characterized as general under honorable conditions.


16.  On 2 December 1987, the applicant was discharged under the provisions of chapter 13 of Army Regulation 635-200 due to unsatisfactory performance.   He had completed 2 years, 9 months, and 17 days of active service that was characterized as under honorable conditions.  He had 21 days time lost.

17.  The unsigned statement submitted by counsel provides a chronological history of the applicant through his period of service and post service to current status.

18.  The two letters of reference show the applicant to be a person of integrity, dependability, and high moral character.  The letters also show the applicant to be reliable, responsible, and professional in his demeanor with both customers and associates.

19.  The letters of recognition show the applicant to be a responsive and dedicated professional in the execution of his duties as a police officer.

20.  The certificates of training show the applicant continues to improve his skills as a police officer.

21.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statue of limitations.

22.  Chapter 13 of Army Regulation 635-200, in effect at the time, in pertinent part, stated that commanders will separate a member for unsatisfactory performance when it is clearly established that the seriousness of the circumstances is such that the member's retention would have an adverse impact on military discipline, good order, and morale.  This regulation also states that the service of members separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record.

23.  Army Regulation 635-200 (Personnel Separations) provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s counsel contends the applicant was immature and made adolescent mistakes.  However, the evidence shows the applicant was 20 years of age (turning 21 years of age within 2 months) when he was assigned to Fort Belvoir.  The evidence also shows the applicant had just successfully completed a tour of duty in Germany.  Therefore, the applicant’s maturity was not considered a mitigating factor in the processing of this case.

2.  The Board noted the applicant’s successful completion of his tour in Germany along with the awards that he received.  However, characterization of service is based on a Soldier’s entire enlistment and not just one assignment.  The applicant had clearly established a pattern of unsatisfactory performance from the time he reported to Fort Belvoir.  

3.  The applicant’s unsatisfactory performance continued through his processing for discharge as evidenced by his failure to respond in the required timeframe to the letter notifying him of his rights under Army Regulations 635-200.

4.  The applicant's post service achievements and conduct are noted.  However, good post service conduct alone is not normally sufficient for upgrading a properly issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.

5.  Evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

6.  Based on all of the foregoing, there is insufficient basis to upgrade the applicant's discharge.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration 2 December 1987, the date of his discharge; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 1 December 1990.  The applicant did not file within the 
3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____jtm__  ___lds __  ____rsv    DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




_________Linda D. Simmons________
          CHAIRPERSON




INDEX

CASE ID
AR20060008831
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070322
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.